In the matter between
THE STATE
and
IN THE HIGH COURT OF SOUTH AFRICA
FREE STA TE DIVISION , BLOEMFONTEIN
KENNETH GOBIDOLO
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Not reportable
Case no: R01/2026
Neutral citation: S v Gobidolo (R01/2026) [2026] ZAFSHC 66 (20 February 2026)
Coram: CHESIWE et OPPERMAN JJ
Heard: 19 Feb rua ry 2026
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLI I. The date and time for hand-down is
deemed to be 16h00 on 20 February 2026.
Summary: Criminal law and procedure - conviction - accused referred to psychiatric
evaluation - conviction was entered without the issue of the accused's criminal
responsibility having been properly determined - conviction set aside.
I
2
ORDER
1 The conviction of the accused on the charge of robbery with aggravating
circumstances is hereby reviewed and set aside.
2 The matter is remitted to the trial court for the presiding officer to deal with the
accused in terms of s 77(6)(a)(i), read with s 78(6) of the Criminal Procedure Act 51 of
1977.
JUDGMENT
Opperman J (Chesiwe J concurring)
[1] This matter serves before this Court on special review in terms of s 304A of the
Criminal Procedure Act 51 of 1977 (the CPA). The accused was arraigned in the Regional
Court on a charge of robbery with aggravating circumstances as defined in s 1 of the
CPA. He was subsequently convicted.
[2] After conviction, and during the sentencing phase, the accused testified in
mitigation of sentence. It was during this testimony that he disclosed, for the first time,
that at the time of the commission of the offence he suffered from a mental condition
which may have affected his conduct. In light of this disclosure, and in order to properly
determine the accused's mental condition, he was referred for psychiatric observation at
the Free State Psychiatric Complex.
[3] A psychiatric report was compiled and subsequently accepted by both the
prosecution and the defence. The findings recorded therein are as follows:
a) The accused suffe rs from a psychotic disorder characterised by auditory
hallucinations and impaired judgment.
b) Due to his mental illness, the accused does not possess the ability to understand
court proceedings so as to make a proper defence, nor is he able to give proper
instructions to his legal representative.
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c) At the time of the commission of the offence, and as a result of mental illness, the
accused was unable to distinguish between right and wrong.
[4] The findings of the psychiatric panel have far-re~ching consequences. Section
I
77 of the CPA regulates the procedure where an accused is, by reason of mental illness
or defect, incapable of understanding the proceedings so as to make a proper defence.
Section 78 of the CPA deals with criminal responsibility at the time of the commission of
the offence.
[5] The uncontested psychiatric findings establish both that the accused is presently
unfit to stand trial and that he lacked criminal responsibility at the time of the commission
of the offence. In these circumstances, the conviction cannot stand.
[6] It is trite that where it appears that an accused was not criminally responsible at
the time of the commission of the offence, the court is obliged to set aside the conviction
and to act in terms of s 78(6), read with s 77(6) of the CPA. A conviction in the face of
such findings would constitute a material irregularity. The learned presiding officer has,
correctly in my view, referred the matter on special review with the request that the
conviction be set aside and that the matter be remitted to the trial court to enable it to act
in terms of s 77(6)(a)(i) of the CPA.
[7] Having considered the record and the psychiatric report, and there being no
dispute regarding the findings contained therein, I am satisfied that the proceedings were
not in accordance with justice to the extent that the conviction was entered without the
issue of the accused's criminal responsibility having been properly determined.
Order
[8] In the result, the following order is made:
1 The conviction of the accused on the charge of robbery with aggravating
circumstances is hereby reviewed and set aside.
2 The matter is remitted to the trial court for the presiding officer to deal with the
2 The matter is remitted to the trial court for the presiding officer to deal with the
accused in terms of s 77(6)(a)(i), read with s 78(6) of the Criminal Procedure Act 51 of
,e11. I
JUDGE OF THE HIGH COURT
I concur
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S CHESIWE
JUDGE OF THE HIGH COURT